EVIDENCE GATHERING

Preventing a Premature Denial

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Duties of VA in Obtaining Evidence Outside

of VA 38 U.S.C. § 5103A - “The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.” • This includes making “reasonable efforts to obtain

relevant records that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain.”

• VA required to continue in efforts to obtain such records until “reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.”

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What advocates can do…

The VA has duty to assist, but vets and their advocates should

not rely on VA alone. Advocates must know where documents are housed

Because claimant must provide enough info to identify & locate existing records, including the approximate time frame of records

This is more extensive than simply gathering private medical

records and lay evidence (which are nonetheless important to a claim)

Advocates should contact records repositories/centers directly,

and are advised to do so when resources have been identified

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National Personnel Records

Center (NPRC) Most records are stored on paper in cardboard boxes and must be

searched manually.

A fire in 1973 destroyed about 2/3 of the records of individuals

discharged from the Army before 1960, and from the Air Force before

1964.

The NPRC frequently cites this as an excuse for inability to comply

with records requests.

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NPRC Standard Form (SF) 180, Request Pertaining to Military

Records

• All that is needed in most cases

• Available for download at http://www.archives.gov/veterans/military-service-records/standard-form-180.html#sf

• It is wise to have the vet complete & sign several copies ahead of time.

• Mail to the correct address noted on the back of the form. In some cases it is sent somewhere other than NPRC.

• Request a fee waiver as a matter of routine.

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NPRC SF 180

• Be specific about what info is needed and why. • Attach a sheet if necessary.

• Even if a vet’s “complete military personnel and medical records” are requested, most times only “outpatient record” will be sent. • To obtain an inpatient record of treatment received while

vet was on leave or in transit, specify the particular facility where he/she was seen.

• Indicate the dates of treatment, nature of treatment, and place of treatment as well as the phrase “clinical hospital records.”

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NPRC What is stored at NPRC? A good rule of thumb is

that records unique to a vet are stored at NPRC.

1. Military Personnel Records

o Only vets who were discharged or retired from Army or Air Force

o The Navy and Marine Corps do not send their personnel records to NPRC.

o Vets who separated from active duty but still retain some reserve status should contact their local Reserve or National Guard units.

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NPRC

What is stored at NPRC

2. Military Medical Records

There are three types of medical records

maintained by NPRC

• Outpatient Records (*for vets who were

discharged before a certain date)

• Inpatient Records

• Sensitive Records

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NPRC What is stored at NPRC

3. Court-Martial Transcripts

• May be useful for the following types of cases:

• Character of discharge determinations

• Psychiatric claims

• Cases in which in-service injury must be established.

• Results of courts martial are usually filed with the OMPF, but the transcripts should be sought from the relevant military service department.

• Send a FOIA request along with the veteran’s name and social security number to the appropriate facility (VBM 18.3.5)

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NPRC

What is stored at NPRC

4. Other Military Records

Independent of OMPF

• Reports of investigations

• Pay records

• Unit personnel rosters

• Ships’ logs

• Unit morning reports

• Unit daily journals

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NPRC

What is stored at NPRC

5. Lost or Destroyed Records – What do you

do?

If a claimant is informed that his/her records have been

destroyed or lost, a request should be submitted to NPRC

that the records be “reconstructed.”

• Some records destroyed in 1973 fire can be

reconstructed from other sources available to NPRC.

• Some medical records can be obtained from the

Surgeon General’s Office extracts.

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NPRC What is stored at NPRC

5. Lost or Destroyed Records – What do you do?

Alternatively, proof of service/character of discharge can be supported by

• County courthouse records

• State unemployment records

• State Adjutant General’s office

• State historical commissions

• OPM if the veteran was employed by a federal or state agency

• SSA

• Railroad Retirement Board

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NPRC What is stored at NPRC

5. Lost or Destroyed Records – What do you do?

Alternatively, medical treatment can be established by

• Statements from service medical personnel

• “buddy” statements

• State or local accident and police reports

• Employment physical examinations

• Medical evidence from private hospitals and physicians which treated the veteran soon after service.

• Letters written during service.

• Photographs taken during service

• Pharmacy prescription records

• Insurance examinations

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US Army and Joint Services Records

Research Center (JSRRC) • The DoD’s executive agent for matters pertaining to PTSD

and Agent Orange.

• The JSRRC helps to document a vet’s exposure to a stressful event or herbicides. • Researches available Army, Air Force, Navy, and Coast Guard

records containing info on reports & personnel of individual units

• Marines should forward requests to the Marine Corps Archives.

• Most records are on paper & stored in cardboard boxes. • Vet must provide specific info about a stressor/exposure & JSRRC

will then conduct a search for records that might confirm the event.

• Who, what, where, and when of each event.

• Be as specific and descriptive as possible.

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JSRRC What is kept in the JSRRC? A good rule of thumb is that records unique to a unit or ship are to be requested here.

1. Army records may include:

• Daily Journals (daily logs of a unit’s activities)

• Operational Reports-Lessons Learned (quarterly reports documenting a unit’s major operations and activities)

• Unit & Organizational Histories (describe general activities of Army units for specified period of time)

• Morning Reports (daily account of personnel actions at company level)

• Casualty Reports (info on type of casualty, location, type of attack, etc.)

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JSRRC

What is kept in the JSRRC?

2. Air Force records may include:

• Quarterly Historical Reports

• Casualty records

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JSRRC

What is kept in the JSRRC?

3. Navy/Coast Guard records may include: • Deck logs & ship histories (records all unusual or sig. enemy action)

• Navy Shore Station Histories (compilation of sig. events for the year)

• Muster rolls (record of assignments of individuals to/from ships)

• Military Personnel Commands (maintains centralized listing of all

Navy combat casualties)

• War Diaries

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JSRRC How to Request JSRRC Research in Support of a PTSD Claim

• There is no form provided, but the JSRRC will accept a

standard VA Form 21-4138.

• Requisite info must be provided in clear & concise

fashion, in a letter or memorandum form.

• Approx. dates of cited stressful incident

• Specific locations

• Type of incident alleged

• Complete unit designations, assignment dates, and base camp

locations when possible.

• Submitting documentation from the OMPF with unit information can

be very helpful.

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JSRRC How to Request JSRRC Research in Support of a PTSD Claim

• Be as specific & detailed as possible.

• Some claimed stressors are too difficult to research. • Civilian threat or violence

• Evidence of mistreatment of prisoners

• Vets or their advocates should provide details describing the circumstances of any unit involvement in the cited stressor.

• It is improper for VA to deny PTSD claim b/c of unconfirmed stressor until the case has been reviewed by JSRRC or Marine Corps Archives.

• A JSRRC search should be made for non-combat stressors

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JSRRC How to request JSRRC Research in Claims for

Disabilities Related to Agent Orange Exposure

• Consult list of Blue Water Naval Vessels/ Other vessel types verified as operating on inland waterways by C&P Bulletin January 2010.

• If vet served on ship listed, but not during dates specified, submit lay evidence & ensure proper JSRRC request made.

• Deck logs & ship histories should be researched.

• Even if vet’s records don’t estimate service on listed ship, review “inland locations” on list and see if common locations.

• JSRRC requests are very important for vets whose service involved short-term service in or stop-over in Vietnam.

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What is a premature denial?

VA denies claim prior to undertaking necessary

procedural or evidentiary development of claim.

A premature denial may be result of no

development as to a particular question, or

inadequate development

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What is a premature denial?

(continued)

Point out how claim was prematurely denied &

what should be done - can help ensure that

requested development is performed properly &

claim is resolved favorably as early as possible

At very least, pointing out inadequate

development can help lay foundation for

argument at BVA or Court

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Why Premature Denials Happen

& Examples

Lack of knowledge on part of VA

adjudicators/raters

Work credit – VA may want to take credit by

closing out case before performing adequate

development

VA management – pressuring employees to

move faster

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Common Types of Premature Denials

Duty to Assist –

Failure to Obtain Service Medical Records or

Service Personnel Records

Failure to obtain private or VA medical records

Failure to recognize implied issues

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Common Types of Premature Denials

(continued)

Failure to return inadequate exams for

clarification

Failure to address pertinent legal theories or

bases of entitlement, i.e., continuity of

symptoms, entitlement to SMC

NOTE: Only 2 of these 4 types of errors

have evidentiary implications, so we will only

focus on those 2 for this presentation

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Duty to Assist Errors

oVA fails to obtain SMRs or STRs

oExample:

• Vet served from 1979-1983

• Vet claims SC for low back, claims in-service

treatment

• VA unable to locate SMRs & states that SMRs

destroyed in 1973 fire at NPRC

• Vet files NOD stating dates of service

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Duty to Assist Errors (continued)

What did RO do wrong?

RO prematurely denied claim by failing to obtain SMRs

Even if SMRs were indeed destroyed in 1973 fire, RO needs to take additional steps to obtain records

• Morning Reports

• Surgeon General’s records

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Duty to Assist Errors (continued)

VA fails to obtain service personnel records

“201” file can contain important info re: vet’s combat history, medals, awards

Very helpful for PTSD claim or for application of § 1154(b) & combat-related disabilities

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Duty to Assist Errors (continued)

Or service personnel records

Performance Evaluations – helpful in PTSD

cases, esp. personal assault cases

TDY records – helpful to prove Vietnam service

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Duty to Assist Errors (continued)

VA fails to obtain unit records

very important for stressor verification for some

PTSD claims

VA says vet doesn’t specify 60-day window

needed to ask for unit records, yet doesn’t do

research to assist vet

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Duty to Assist Errors (continued)

oExample:

• Vet claims stressful event in “Operation Birmingham”

• RO makes no attempt to verify at JSRRC, stating vet didn’t give a 60-day window

• However, “Operation Birmingham” took place April 24 to May 17, 1966

• A 30-second internet search revealed this info

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Duty to Assist Errors (continued)

oVA fails to obtain ship’s logs that could show that

vet’s ship served in “brown water” or docked in

Vietnam port, thereby helping to show vet had

“Vietnam service” for Agent Orange presumptive

rules

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Duty to Assist Errors (continued)

VA fails to consult C&P Bulletin showing that certain vessels presumed to have operated in “brown water,” or “blue water” ships that docked in VN

Example:

C&P Bulletin dated 1/2010 states all ships containing “LST” (Landing Ship, Tank) designation considered to have served on inland waterways (“brown water”) during the entire tour

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Duty to Assist Errors (continued)

VA fails to obtain pertinent VA medical records

Example:

• In claim for SC for PTSD, VA denies based on no

current diagnosis of PTSD

• VA out-patient records show initial treatment visit at

another VA mental health clinic

• VA failed to obtain these records even though they

could have shown a diagnosis of PTSD

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Failure to Return Inadequate Exams

for Clarification oVA examiner fails to return examination for

clarification

oExample:

• VA examiner gives negative medical linkage opinion

• Relied on fact of no documentation of treatment

during service

• But vet had lots of lay evidence of continuing

symptoms since service

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Failure to Return Inadequate Exams

for Clarification

• Since SC can be granted based on continuity of symptoms (for chronic disabilities set forth in 38 C.F.R. § 3.309(e)), VA should have returned exam for clarification

• Namely, Dr. should have addressed vet’s continuing symptoms since service

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What to do if claim

prematurely denied?

First, need knowledge to identify premature

denial

Be familiar with statutes, regs, M21-1MR & VA

Fast Letters

Take case to rater if possible

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What to do (continued)

If no results, go to station management

Complain to Veterans Service Center Manager

File NOD if all else fails

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What to do (continued)

What NOD should contain –

Required elements: express disagreement w/ decision & desire for appellate review

In addition, NOD should say

How claim was prematurely denied

What RO should have done & what should be done to remedy error

Be specific!

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Questions?

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